Standards of Review on Appeal: Questions of Law or Fact?

This post and the next three explore the South Carolina appellate courts’ varying degrees of deference to trial court rulings.This post addresses divides the universe of possible appellate issues into issues of law and questions of fact, explains why the two are treated differently, and offers a tip on how the use the difference. The next three posts cover the differing standards of review for factual findings made in actions at law and in equity, certain rulings made pre-trial and at trial, and factual findings by administrative agencies.

Issues of law are reviewed de novo.

Appellate courts owe trial courts no particular deference when reviewing legal rulings over questions of law. Moriarity v. Garden Sanctuary Church of God, 341 S.C. 320, 327, 534 S.E.2d 672, 675 (2000). This lack of deference includes reviewing the trial judge’s application of the law to stipulated or undisputed facts. J.K. Const., Inc. v. Western Carolina Regional Sewer Auth., 336 S.C. 162, 166-167, 519 S.E.2d 561, 563 (1999). The South Carolina Supreme Court thus leaves it for itself to say what a statute means or what the law is and how it applies.

Why questions of law are reviewed de novo.

The United States Supreme Court has explained why this independent review of legal issues makes sense.Unless review is de novo, trial judges may set in motion divergent developments in the law. And they, institutionally, may be less capable law-givers than appellate courts.

Trial judges by necessity devote their energies and resources to presiding over individual trials, hearing witnesses, and reviewing evidence. They thus lack the structural advantages that appellate judges and Justices enjoy from their extended time for reflection, their benefit of honed appellate briefs, and their ability to collaborate with the other appellate judges or Justices on the court. See Salve Regina College v. Russell, 499 U.S. 225, 231-235 (1991)(explaining basis for de novo review).

Practical application of the distinction.

Appellants can use the distinction between questions of law and of fact to their advantage because they choose and frame which issues to appeal. If possible, each issue should be framed as an issue of law because de novo review for issues of law increases the likelihood of a reversal. Respondents should if possible characterize every issue on appeal as an issue of fact. Deferential review of issues of fact increases the likelihood of an affirmance.

I recently lost such a battle. Earlier this year, I argued to the Court of Appeals that the Workers Compensation Commission misconstrued and misapplied a statute when it declined to consider certain evidence on causation. Review was de novo, I contended, because the record showed that the fuss was over the statute’s construction and application. The Court, however, seemed to think that the issue was really a factual one over how much weight the evidence deserved. By considering the issue as factual, it deferred to the Commission as the fact-finder and affirmed. Thigpen v. Lexington Medical Center, No. 2012-UP-196 (S.C.App. filed March 21, 2012). Oh well.

Has anyone else successfully defended an appeal by characterizing issues of law as issues of fact? We would love to hear from you. You can reach me at

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